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Lance Finch deflected blame, but judges are as much a part of the problem as lawyers and government

Chief Justice of the B.C. Court of Appeal, Lance Finch, pictured in 2011.

Photograph by: Les Bazso
, Vancouver Sun

Lance Finch, chief justice of the B.C. Court of Appeal, rode into retirement this month nodding to the crisis in the legal system and suggesting the Vancouver Art Gallery be restored as a courthouse.

One of the important structures from the province’s early history designed by Francis Rattenbury, the art gallery at 800 West Georgia could be a home for the Court of Appeal, Finch said.

“It is not too late to return both the building and the grounds to their former state,” he told a recent goodbye dinner of legal swells.

But it was his observations about the state of the legal system that were notable, however, and undoubtedly why his remarks were posted on the court’s website.

Finch entered law school in 1959 and graduated in 1962 with such luminaries as Martin Taylor, Q.C., Frank Iacobucci, Q.C., and Marvin Storrow, Q.C. Finch is very much one of the province’s legal elite and has had a very privileged perspective from B.C.’s highest bench for 20 years.

“Much criticism has been directed at the courts and at the legal profession,” Finch acknowledged in his speech. “We are all aware that access to justice is a critical issue.”

He then performed a remarkable piece of mental gymnastics to either let the profession and the judiciary off the hook for their complicity or to divert attention.

“We must also remember that our legal system is not designed nor equipped to solve the underlying social problems that cause many people to be in conflict with the law, or to look to the courts for redress,” he said. “Mental illness, substance abuse, poverty, lack of education, inadequate or no parenting, and dysfunctional relationships are some of the underlying causes of both crime and civil disputes.

“It is simply not realistic to expect the courts, or the legal system, to redress these social ills. They call out for well-considered, evidence-based policy solutions.”

The departing chief justice believes the bench is like The Who — misunderstood.

He says the media misinterpreted the missive he and two lower court chiefs penned last year on the independence of the judiciary.

It was not, he said, a “retreat from participation in the dialogue about improvements to our justice system. Nothing could be further from the truth.”

He boasted that the recent memorandum of understanding signed by the judges and the attorney-general was proof.

“It lays the groundwork for productive discussion, recognizing that any change begins with consultation and the sharing of ideas,” Finch intoned. “At the same time, it reaffirms the fundamental importance of a strong and independent judiciary, free of influence in those areas that are crucial to maintaining the rule of law in a free and democratic society.”

The document is mostly a motherhood recitation of existing statutes, legislation, convention and habit; it was a public relations exercise.

You can read it, too, on the court website.

I think Finch was obfuscating.

In place of useful public dialogue on the legal crisis, we have been fed stage-managed pabulum: Legal stakeholders held their justice summit in private.

And judges are as much a part of the problem as lawyers and government.

The former chief’s comments on the March 2011 report of the Public Commission on Legal Aid, chaired by Len Doust, is a perfect example of the disconnect.

Doust said the government should recognize legal aid as an essential public service like medicare. Victoria heard — let’s create another tax cow for lawyers to milk.

There are very good reasons why, two years later, Doust’s recommendations are gathering dust — cost and no useful dialogue.

The truth is that by any measure our courts aren’t working as well as they once did. The rules and dynamic in the courts are flawed; the interminable process, the costs, the legal fees and the time required mean the law is something only the wealthy can invoke with any confidence.

Money is distorting justice as much as it is skewing politics.

As Anglo-American scholar Niall Ferguson has said: The rule of law has been replaced by a rule by lawyers because the rules are no longer transparent or simple, and access to justice no longer relatively easy.

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